I don’t think this is perjury. Attorney General Alberto Gonzales assured the House Judiciary Committee that the government wasn’t deliberately engaging in warrantless “surveillance” of calls between two Americans.

And, in fact, what we’ve learned today about the NSA is (just barely) consistent with that claim: the surveillance was by telephone companies, and then they voluntarily gave the info — not in real time — to the government. So what we have here is a massive privacy violation by the phone companies (other than Qwest, and good for them), engineered by the NSA. That’s not quite exactly the same thing as ‘surveillance’ in which the government usually does the spying itself, and usually in real time.

3 Responses to Merely Parsimonious With the Truth

So you’re a good lawyer and you think you could get the Attorney-General off on a perjury charge. OK. I’m fine with that, in fact I think that i’s should be dotted and t’s crossed before someone is found guilty. Mr Gonzales may not have been under oath at that hearing.

But your logic that ‘because party G usually uses procedure P1 to do X, no other procedure can amount to G’s performance of X,’ well, that’s just horseshit. And by a reasonable meaning of the term surveillance, this program amounts to “warrantless surveillance of calls between two American” by their government. So based on what is known to me right now, it appears Mr Gonzales lied.

First, that defense rests on the idea that Gonzalez was asked if the government had conducted surveillance of conversations between Americans inside the US and that’s not accurate. The question Gonzalez was asked was, “Number two, can you assure us that there is no warrantless surveillance of calls between two Americans within the United States?”. That didn’t ask if a governmental agency was physically performing the surveillance, just whether or not the surveillance was going on. Second, claiming that something’s not a government action if a non-government entity physically performs it (but on behalf of the government) isn’t effective, at least in this case. Per DoD 5240.1-R, Procedure 1 – “4. DoD intelligence components shall not request any person or entity to undertake any activity forbidden by EO 12333 (reference (a)).” This is the section that is used to keep the government from simply contracting out all it’s illegal work to get around the rules. There’s not a chance in a thousand he’ll ever be charged with perjury in this instance but, if he were, I don’t think this would be a good defense strategy.

I think the distinction turns on whether this is data the telcos were collecting anyway. If it is, and they turned over copies, I don’t think it’s a “request … to undertake” the activity. If they collected any extra, then it certainly is.